40
Order (No 2) 2014 under s 324 of WMA was in place. His conduct constituted an
offence under WMA s 336C(1) and was, in common parlance, a form of water theft.
Further, he took water when two of his pumps had broken meters; an offence under
WMA s 91L(2). The penalty handed down was $189.491.00 plus costs.
In deciding the sentence Preston J took into account the objective seriousness of
the offence and the subjective circumstances of the offender. In considering the
former, he ultimately turned to the objects of the WMA. Those objects (that embed
the concept of ecological sustainability in the statute) are comprised of principles
(including the precautionary principle) (Water Management Act 2000 s 3). One way
that the WMA seeks to ensure those principles are fulfilled is by regulating water
abstractions. Barlow’s conduct ignored the relevant regulation and underpinning
principles. In doing so, it contributed to the erosion of ecological integrity.
Whilst beefed-up criminal sanctions may deter actors such as Barlow from future
re-offending, it may also be helpful to understand why Barlow breached in the first
place. He may for example, have resented ‘a legislated national program of reduced
water for irrigation’ (Walker 2019, p. 20) grievously threatening his future enterprises; an issue that water governance may need to better address.
4 ‘Shady Deals’: Water Buy-Backs
Water buy-backs represent one mode by which the Commonwealth can acquire
water for environmental watering. Once acquired by the relevant government
department, the water is held and managed by the Commonwealth Environmental
Water Holder (CEWH) (Slattery and Campbell 2018, p. 1).
Several buy-backs have proved problematic. Criticism ranges from the high
prices paid for some licences, the types of licences/rights purchased (some yield
little water), the below-par standards of due diligence and procurement procedures and the potential conflict of interest between vendors and purchasers, to a fear
that multi/trans-national purchasers may not have the best interests of Australian
society at heart (Hannam 2019; Slattery and Campbell 2018, p. 1).
4.1 Kia-Ora/Clyde
The Kia-Ora/Clyde buy-back has proved particularly contentious. Eastern Australia
Agriculture Ltd (EAA), a large water holder with multinational investors (Bloomberg
2019), offered to sell the Department of Agriculture (DoA) its Overland Flow (OF)
licences at its Kia-Ora and Clyde properties (Queensland). Its original asking price for
the licences and storage was $27,880,000 (EAA Letter cited in Slattery and Campbell
2018, p. 8) but DoA ultimately purchased fewer megalitres of licences without storage
for the higher price of $78,891,300 (Slattery and Campbell 2018, p. 8). DoA’s final per
megalitre purchase price was 25% higher than EAA’s original, offered selling price.
J. Gray
Order (No 2) 2014 under s 324 of WMA was in place. His conduct constituted an
offence under WMA s 336C(1) and was, in common parlance, a form of water theft.
Further, he took water when two of his pumps had broken meters; an offence under
WMA s 91L(2). The penalty handed down was $189.491.00 plus costs.
In deciding the sentence Preston J took into account the objective seriousness of
the offence and the subjective circumstances of the offender. In considering the
former, he ultimately turned to the objects of the WMA. Those objects (that embed
the concept of ecological sustainability in the statute) are comprised of principles
(including the precautionary principle) (Water Management Act 2000 s 3). One way
that the WMA seeks to ensure those principles are fulfilled is by regulating water
abstractions. Barlow’s conduct ignored the relevant regulation and underpinning
principles. In doing so, it contributed to the erosion of ecological integrity.
Whilst beefed-up criminal sanctions may deter actors such as Barlow from future
re-offending, it may also be helpful to understand why Barlow breached in the first
place. He may for example, have resented ‘a legislated national program of reduced
water for irrigation’ (Walker 2019, p. 20) grievously threatening his future enterprises; an issue that water governance may need to better address.
4 ‘Shady Deals’: Water Buy-Backs
Water buy-backs represent one mode by which the Commonwealth can acquire
water for environmental watering. Once acquired by the relevant government
department, the water is held and managed by the Commonwealth Environmental
Water Holder (CEWH) (Slattery and Campbell 2018, p. 1).
Several buy-backs have proved problematic. Criticism ranges from the high
prices paid for some licences, the types of licences/rights purchased (some yield
little water), the below-par standards of due diligence and procurement procedures and the potential conflict of interest between vendors and purchasers, to a fear
that multi/trans-national purchasers may not have the best interests of Australian
society at heart (Hannam 2019; Slattery and Campbell 2018, p. 1).
4.1 Kia-Ora/Clyde
The Kia-Ora/Clyde buy-back has proved particularly contentious. Eastern Australia
Agriculture Ltd (EAA), a large water holder with multinational investors (Bloomberg
2019), offered to sell the Department of Agriculture (DoA) its Overland Flow (OF)
licences at its Kia-Ora and Clyde properties (Queensland). Its original asking price for
the licences and storage was $27,880,000 (EAA Letter cited in Slattery and Campbell
2018, p. 8) but DoA ultimately purchased fewer megalitres of licences without storage
for the higher price of $78,891,300 (Slattery and Campbell 2018, p. 8). DoA’s final per
megalitre purchase price was 25% higher than EAA’s original, offered selling price.
J. Gray